AUTHOR: Percy Schmeiser TITLE: Percy Schmeiser claims moral and personal victory in Supreme Court Decision DATE: 22 May 2004 URL: http://www.percyschmeiser.com/decisioncomments.htm Commentary from GRAIN: Percy Schmeiser's long legal battle against Monsanto has reached an end. On 21 May 2004, the Supreme Court of Canada ruled, in a tight 5-4 decision, that the farmer was guilty of violating Monsanto's patent on a gene for resistance to glyphosate ("Roundup", a broad-spectrum herbicide). The Court determined that patent rights on a gene extend to the living organism in which it is found and, consequently, that saving and planting seed containing a patented gene without authorisation from the patent holder is illegal. This ruling follows a ground breaking decision by the same court, in the Harvard oncomouse case, to reject patents on higher life forms. The judges were equally aware that no Canadian government has put forward a policy or law that prevents farmers from saving seed on their own farm, although the Plant Breeders' Rights Act makes swapping or selling seed harvested from protected varieties without authorisation illegal. Canadian farmers have a long and strong tradition of seed saving, especially in the western prairies where Schmeiser is from. Canola, the crop Schmeiser grew, is itself a product of farmer seed saving, farmer selection and publically funded research. It's an example of what plant breeding can accomplish without patents. It's also an example of why co-existence between GM (genetically modified) and non-GM crops is impossible. Today, all of the canola acreage in Western Canada is contaminated with Monsanto's patented "Roundup-Ready" (RR) gene. None of this mattered to the majority of the court. Their decision focused on a narrow interpretation of case law, treating plants like any other manufactured good that the Canadian patent system was designed for, even though the judges repeatedly pointed out the special nature of biological "inventions". They reasoned that the owner of a patented gene should have monopoly rights over any living organism containing that gene, no matter how it got there and even if, as the majority of judges confirmed, the plants themselves are not patentable. It didn't matter that Schmeiser never deliberately planted Monsanto seeds in his fields. He committed a crime merely by growing plants containing Monsanto's gene. With this Supreme Court decision, not only are farmers being told they have to suffer the economic, ecological and social effects of GM contamination but they will held in violation of someone's property right for it. Which may mean that more farmers will try to escape the threat of legal action by buying Monsanto's seeds and signing a technology use agreement. Otherwise, like soybean farmers in Brazil, they could expect to find Monsanto at the grain elevator, waiting to test their harvest for the presence of patented genes and charge them royalties when the genes are detected. But the Supreme Court decision could also trigger a major backlash against Monsanto. The true face of the "gene revolution" and of the control handed to transnational corporations through patents on life has been laid bare. As Schmeiser says, "This ruling is an injustice." The struggle now leaves the court and goes firmly into the political arena. PERCY SCHMEISER CLAIMS MORAL AND PERSONAL VICTORY IN SUPREME COURT DECISION by Percy Schmeiser 22 May 2004 The Supreme Court handed down their decision yesterday and I have mixed emotions to it. I have received many phone calls and emails from concerned supporters and friends and I appreciate this very much. It was a personal victory and I want to thank my lawyer Terry Zakreski for his dedication and perseverance on my behalf. On the broader issues of my case, I regret that things did not work out for my supporters. I do not have to pay Monsanto one cent for profits, damages, penalties, court costs or their technology use fee of $15/acre. I feel good about this ruling, as I have said all along that I didn't take advantage or profit from Monsanto's technology in my fields. I am pleased that the Supreme Court felt that way as well. It has been my position that I didn't want their technology in my fields, that I didn't use their technology by spraying, didn't sell their technology as seed to another farmer and didn't earn any profit from it. I felt it hard to accept that I should have to pay them for it. I believe that Monsanto will have a hard time in pursuing patent infringement against other farmers. They are now going to have to prove that a farmer profited from having RR canola in their field. The Court noted that my profits were the same whether I had conventional canola or RR canola, so I find it hard to see how Monsanto can say in any future case that the farmer made more money because of their product. This decision may have removed the "teeth" from their patent. I also believe that Monsanto will face huge liability issues down the road. The Court determined that they have ownership to the plant and that I infringed by having it in my field. With ownership comes responsibility and I assume more lawsuits will be filed against them for the contamination of farmer's fields. I was always concerned about this lack of responsibility that Monsanto took for the unconfined release of RR canola in western Canada. I think the Court's decision will force them to be held accountable for it now. On the bigger issue of whether or not their patent was valid, the Court ruled that it is, and we have to accept that judgment. For this to be changed our Parliament will have to act. We have a conflict between plants breeder's rights and patent law and the government will have to sort that out. All I did was save my seed from year to year. Now it is clear that a company's patent will take precedence over the rights of farmer's to save and reuse their seed. Farmer's should be concerned about this judgment as they now may lose their ability to continue with this practice. I believe that this ruling is an injustice and Parliament must act to ensure that farmer's rights are protected. The playing field between farmer's rights and the bio-tech companies rights has been tilted towards the companies with this decision. I have always campaign on the right of a farmer to save and re-use his own seed. This is what I have been doing for the last 50 years. I will continue to support any efforts to strengthen the rights of a farmer to save and re-use his own seed. GOING FURTHER (compiled by GRAIN) Full text of the Canada Supreme Court decision (Monsanto Canada Inc v Schmeiser), Ottawa, 21 May 2004: http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc03 4.wpd.html National Farmers' Union, "Supreme Court Decision Sets Dangerous Precedent," Saskatoon, 21 May 2004. http://www.nfu.ca/Releases/Supreme%20Court%20decision%20set s%20dangerous%20precedent.pdf or download from http://www.nfu.ca/section1.html Anna Maria Tremonti, "The Current", CBC Radio One interview with Percy Schmeiser, Saskatoon, 20 May 2004 (Real Media format). http://media.cbc.ca:8080/ramgen/cbc.ca/thecurrent/media/200 405/20040520thecurrent_sec2.rm or go to http://www.cbc.ca/thecurrent/2004/200405/20040520.html and scroll down to part 2 Stephen Leahy, "Canada's Top Court Backs Monsanto Against Farmer", Inter Press Service, 21 May 2004. http://www.ipsnews.net/interna.asp?idnews=23862 ETC Group, "Canadian Supreme Court Tramples Farmers' Rights -- Affirms Corporate Monopoly on Higher Life Forms", news release, Winnipeg, 21 May 2004. http://www.etcgroup.org/article.asp?newsid=454 "Biotech giant wins Supreme Court battle", CBC News, 21 May 2004. http://www.cbc.ca/stories/2004/05/21/canada/schmeiser_monsa nto040521 Meanwhile, on the other side of the Canadian border, farmers and state legislators are agitating for the right to save seed despite patent law in the United States: -- Danny Henley, "Seed buying contracts may become state issue", Morris News Service, 15 May 2004. http://www.cjonline.com/stories/051504/bus_seed.shtml -- Associated Press, "Lawmaker Monsanto agreement unfair to U.S. growers", Hannibal (Missouri), 18 May 2004. http://www.kansascity.com/mld/kansascity/news/local/8695844 .htm